CHARTER SCHOOLS AS STATE ACTORS: ARE THEY TRULY PUBLIC SCHOOLS?
BY
DAVID L. REQUA
DISSERTATION
Submitted in partial fulfillment of the requirements
for the degree of Doctor of Philosophy in Educational Organization and Leadership with a concentration in Educational Administration and Leadership
in the Graduate College of the
University of Illinois at Urbana-Champaign, 2017
Urbana, Illinois Doctoral Committee:
Professor Samuel Kern Alexander, Chair Professor William Trent
Professor Adrienne Dixson
ABSTRACT
The trend of establishing charter schools across the United States has been accomplished by authorization statutes labelling them as public schools. They are supported by public tax dollars but private entities are obtaining charters and in some cases hiring for-profit companies to operate the schools. Private boards of directors replace a locally elected school board to direct the operation of these schools. As
teachers find traditional public schools closing and charter schools entering the market where closures have occurred they must choose between moving to a district still hiring fully certified teachers or entering employment with charter organizations. In making that change teachers must consider whether the terms of their employment have changed and understand the nature of their new relationship with school leadership.
As public employees, teachers were protected by constitutional provisions extending that protection to the states through the Fourteenth Amendment. That amendment is what incorporates much of the Bill of Rights and prohibits deprivation of those rights by state action. As charter schools become a larger employer of teachers the question arises whether these schools are also subject to those constitutional provisions in the same way a public school district is when employing teachers. The state action doctrine, developed in Fourteenth Amendment jurisprudence, controls whether those charter school employers must observe constitutional limitations or the employees have lost those protections by becoming charter employees. The question can only be answered by tracking the development and status of the state action doctrine through the decisions of the U.S. Supreme Court.
The state action doctrine has been famously labeled a “conceptual disaster area”1 and has eluded consistent interpretation for more than a century. Because the law is often developed in a syllogistic pattern supported by building on previous holdings and remaining consistent in interpretation of fact situations most
commentators have searched for some consistency in the holdings of the Court by connecting words that appear in multiple decisions. That method has failed to provide a truly consistent interpretation of state action and leads mostly to the “torchless search for a way out of a camp echoing cave”2 as described by Professor Black sixty years ago. This study takes a different approach to the decisions to make sense of the changing interpretation of the doctrine through time.
Reading the cases with an eye to the members of the Court and the prevalent political issues of the day reveals first a steady expansion of the doctrine and then a contraction that follows the patterns of those political issues and pressures felt by the Court from time to time. This method uncovers an arc of decisions that follow that expansion and contraction through time and develop an understanding of how new cases might be decided. Because the Court has not dealt with this issue that projection will assist any litigants attempting to claim constitutional protection to shape their cases to provide the best chance of success.
1 CHARLES L.BLACK,JR., Foreword: "State Action," Equal Protection, and California's Proposition 14, 81
HARVARD LAW REVIEW 69, 95 (1967).
TABLE OF CONTENTS
Chapter 1: The Issue of Charter Schools’ Publicity ... 1
Chapter 2: Review of the Literature ... 21
Chapter 3: Methodology ... 73
Chapter 4: The Arc of State Action in the Supreme Court ... 82
Chapter 5: Implications for Charter School Teachers ... 168
Chapter 1
The Issue of Charter Schools’ Publicity
Introduction
Charter schools have become a substantial force in education in the United States in the twenty-first century. The first charter school law was enacted in Minnesota in 1991 and the first charters issued soon thereafter in 1992. Since then 42 states and the District of Columbia have enacted charter school laws with only Kentucky, Montana, Nebraska, North Dakota, South Dakota, Vermont, Washington and West Virginia
without a public charter school law. According to the National Alliance for Public Charter Schools there were 1542 charter school operating in the 1999-2000 school year. By 2006-2007 that number had grown to 3999 and in 2014-2015 there were a reported 6630 charter schools operating.3 Charter schools now constitute more than 6% of all public schools. By comparison during that same period private schools shrank in enrollment from 12% to 10% of all students while charters grew from .7% to 4.6%, more than accounting for the loss in private school enrollment.4 There is little doubt that the charter school movement is growing in influence and is building a large following in states around the country.
When charters are discussed as a response to a perceived need to make radical change in schools one feature is prominent in the discussion. In the forty-three states
3 National Alliance for Public Charter Schools, Charter School Data Dashboard,
http://dashboard2.publiccharters.org/National/ (last visited, April 5, 2016).
4 Institute of Education Sciences, National Center for Education Statistics, The Condition of Education,
with charter school statutes, all label them as “public schools” while exempting them from selected legal and structural obligations of traditional public schools. It is clear from the selected exemptions that advocates of charter schools have problematized teachers and specifically teacher unions. The National Alliance for Public Charter
Schools, the largest association supporting charter schools, has created a Model Law for states to enact charter school legislation.5 The Alliance grades states by their
conformity to their model including the recommendation that states exempt charter schools from collective bargaining agreements in existence at least.6 It also suggests exemption from all state laws and regulations except those that deal with health and safety, civil rights, student accountability, criminal background checks for employees, open meetings, freedom of information laws and accounting requirements. Teacher certification is suggested to merely meet the minimum requirements of the former No Child Left Behind law which allowed for alternative certification as a rather open option.7 Each of those is open to state adoption and interpretation but the Alliance rankings of the states’ laws indicate that most have adopted some limitation on collective bargaining for charters.8
5 A New Model Law For Supporting The Growth of High-Quality Public Charter Schools (National
Alliance for Public Charter Schools 2009).
6 TODD ZIEBARTH,NATIONAL ALLIANCE FOR PUBLIC CHARTER SCHOOLS, MEASURING UP TO THE MODEL:ARANKING OF STATE CHARTER SCHOOL LAWS (2016).
7 A New Model Law For Supporting The Growth of High-Quality Public Charter Schools, supra n.4
(2009).
Although state charter laws vary across the states what remains constant is the enforceability of rights protected by the Constitution. Those rights, with one exception9, are protected from infringement only by the state or federal government. Private
individuals and corporations are not constrained by the Constitution from infringing on those rights unless they are specifically treated in a statutory scheme. Public employers are actors of the state and thus fall within the constraints prohibiting the infringement of rights of individuals set out in the Constitution. Despite the label of charter schools as public in the several statutory schemes there remains a question whether they are public for the purposes of the Constitution. This study will address that question.
Green and Mead10 have reviewed the several state laws establishing charters quite exhaustively revealing some of the legal questions that vary in creation and operation of charters under similar but different state statutory schemes. All those schemes identify charters as “public schools” but statutory labels seldom carry the day when the exact legal nature of an institution is in question in the Court. Courts require reasoned analysis based upon precedent and foundational law to precisely define the status of institutions as public or private. Often the lines are not clearly drawn and require a close analysis of fact situations to unfold a complete picture of the status of a given new institution such as charter schools. Because charter schools are a significant departure from the traditional public school system that has existed in this country since at least the end of the nineteenth century their status is still at issue.
9 The Thirteenth Amendment abolishing slavery applies to individuals and states.
10PRESTON C.GREEN,III&JULIE F.MEAD,CHARTER SCHOOLS AND THE LAW:ESTABLISHING NEW RELATIONSHIPS
What will be referred to as traditional public schools in this study will be the public-school system that existed in the United States starting in the late nineteenth century until the arrival of the charter school movement. Public schools were a stable institution until policymakers and politicians began to depict them as failing beginning with the now well-known A Nation at Risk.11 This narrative of failure led to a movement away from the stable format that existed from the post-Civil War era until the late twentieth century into what is a new format. The rhetoric surrounding these changes has been that these new formats are innovative and creative while remaining public schools has come under scrutiny12 and raises serious questions about the substance of that rhetoric.
Statement of the issue
Teachers serve a central role in student learning and their status in charters will be largely defined by the determination of the Court whether they are public employees or private employees. Lesser rights could discourage qualified candidates from teaching in charter schools while lesser qualified teachers might find employment there after being limited from traditional public schools. One study reports that less qualified teachers are a greater percentage of the teaching workforce in non-white, low
performing schools, particularly in urban areas.13 More qualified teachers also tend to
11 NATIONAL COMMISSION ON EXCELLENCE IN EDUCATION,UNITED STATES DEPARTMENT OF EDUCATION, ANATION AT RISK:THE IMPERATIVE FOR EDUCATIONAL REFORM (1983).
12 See CHRIS LUBIENSKI, Redefining "Public" Education: charter schools, common schools, and the
rhetoric of reform, 103 TEACHERS COLLEGE RECORD 634(2001).
13 HAMILTON LANKFORD, et al., Teacher Sorting and the Plight of Urban Schools, 24 EDUCATIONAL
quit or transfer out of poor urban schools leaving a less prepared teaching staff in those schools.14 The requirement for teachers to be “highly qualified” as very loosely defined in the No Child Left Behind law that serves as the qualification floor for the model charter law has not been shown to be associated with larger student gains in learning.15 Teacher quality is a significant factor for student achievement and first year teachers are generally significantly less effective than teachers with three or more years of experience.16 Teacher turnover has significant and negative effect on student
achievement particularly in schools with greater numbers of low-performing and Black students.17 If charters fail to recruit and retain high quality teachers there will be a negative impact on student learning for their many students.
When serving in traditional public schools, teachers, like students, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”18 Equal process and due process rights also fall within those not lost by teachers upon entering into employment as a public school employee. What is the effect if teachers in what is offered as a public school in the form of a charter school are no longer so protected? How will that impact the decision of individuals drawn to teach
14 Id. at 47.
15 KRISTIE J.R. PHILLIPS, What does "Highly Qualified" Mean for Student Achievement? Evaluating the
Relationships Between Teacher Quality Indicators and At-Risk Students' Mathematics and Reading Achievement Gains in First Grade, 110 THE ELEMENTARY SCHOOL JOURNAL 464(2010).
16 STEVEN G.RIVKIN, et al., Teachers, Shools, and Academic Achievement, 73 ECONOMETRICA 417(2005). 17 MATTHEW RONFELDT, et al., How Teacher Turnover Harms Student Achievement, 50 AMERICAN
EDUCATIONAL RESEARCH JOURNAL 4(2012).
but concerned about the instability of an employment market without those protected rights? Those are questions we are not able to answer at this point but we can look ahead to see what path the Supreme Court is likely to follow in deciding the status of charter schools as either public or private institutions defining the protected rights of the teachers, if any.
Often, in arguing the strengths of charter schools the issue of tenure is raised as a part of teacher unionization. The fact is that teachers had tenure laws well before there were teacher unions. As early as 1909 teachers had tenure protection to avoid firings for specious reasons.19 It is argued that somehow teachers are given such special treatment that their stability disrupts quality education in schools. However, teachers have been shown to be less stable in their employment that private workers despite tenure and due process protections. Because charter schools are often exempted from the restrictions of tenure laws or allowed to apply for exemption in seeking a charter20 the sole remaining protection existing is the due process clause of the Fourteenth Amendment. If charter schools are found to be public employers that protection
remains. If they are not, there is nothing to protect teachers from firings for any reason, including political or even personal reasons. The stability of employment for teachers in schools becomes very tenuous under such a scenario. There are no comparable data from the private sector, because the Bureau of Labor Statistics groups layoffs with firings. In 2012, companies with over a thousand employees, the closest private
19 DANA GOLDSTEIN,THE TEACHER WARS:AHISTORY OF AMERICA'S MOST EMBATTLED PROFESSION (Anchor
Books 2014).
counterpart to large urban school systems, lost only about 2 percent of their workforce from firings, resignations, and layoffs combined while the data for teachers show approximately a 2% rate of dismissal for cause among both tenured and non-tenured teachers combined.21 In short, teachers are more, not less, likely than many other workers to get fired. Without a requirement to show cause for dismissal there can be little doubt that the termination rate would grow higher.
Teacher stability is an important element of quality schools. Experienced teachers are shown to produce better results.22 Teachers who are in their first few years of teaching are not as effective as they will become with experience.23 Given the centrality of teacher quality to student learning it is essential to maintain a well-prepared and experienced teacher workforce to maintain high quality schools where student learning flourishes. That is not to say that teacher stability guarantees quality teaching but there is certainly evidence that high teacher turnover and low experience levels have produced poor results.24
All charter laws begin with the declaration that the charter schools they create are “public” schools. At least in part it is to assure the tax paying public that they are supporting a public institution. Attempts to provide tax money to private schools were
21 DANA GOLDSTEIN,THE TEACHER WARS:AHISTORY OF AMERICA'S MOST EMBATTLED PROFESSION (Anchor
Books 2015).
22 RIVKIN, et al., ECONOMETRICA, (2005).
23 JOHN P.PAPAY &MATTHEW A.KRAFT, Productivity returns to experience in the teacher labor market:
Methodological challenges and new evidence on long-term career improvement, 130 JOURNAL OF
PUBLIC ECONOMICS 105(2015).
either not politically successful or ran afoul of legal barriers to the use of public funds for private purposes but the statutory label of charters as public is not controlling legally for a determination of whether constitutional or even Civil Rights protections exist. Those protections exist only to limit action by actors on behalf of the public – commonly called state actors. Private action is not so limited. The significant question raised in this study is whether charter schools are public employers for the purposes of personnel actions. The Supreme Court has not ruled directly on the issue but the State Action Doctrine has been developed quite extensively and the patterns can provide indications of how the question will be answered.
In practice, the efficacy of charter schools remains a highly contested issue with wide variations in standards to measure that efficacy and the variance in student
populations and communities. The questions about efficacy require an analysis of many different settings and communities and will require different answers to be complete. One feature of charter schools can be examined on a nation-wide basis. The nature of the publicness of charter schools is, in a central way, a matter of law and legal
interpretation. The supreme law of the land for all states in found in the Constitution, the source of the basic rights enjoyed by all persons in the United States. Whether those rights are protected by the Constitution is dependent on whether the individual or institution infringing on them is a private or a state actor. That distinction applied to charter schools remains an open question but one that will define the nature of teachers’ status as employees of those schools.
In the late nineteenth century, public schools developed into the means by which a wide group of citizens could find a pathway to employment opportunities outside of
the old traditional agrarian society. Industrial development and increasing technology called for better-trained workers who could read, communicate well, and understand the machinery and business aspects of a rising commercial economy. It was the public school that brought a community together through an elected group of local people forming and shaping policy for all local students to learn common curriculum,
community values and an understanding of citizenship in the young democracy. Often, the schools were the identity of the community. Of course, we know that these schools were far from their ideal of inclusion of all students. That goal was not even approached until the mid-twentieth century and remains a challenge today. Private schools had long existed and remained to serve limited groups who could afford it or who had a religious connection to preserve but the distinction was clear: Public schools used common public tax funds and private schools used tuition or other private funding to operate.
The concept of public schools then was driven by a set of principles outlined masterfully by Goldin and Katz25 and identified by them as “virtues” that developed as schooling emerged during the post-Civil War era as the country reunited and schools became a focus of towns and communities across the land. Those virtues were: public funding, public provision, separation of church and state, a decentralized system of independent districts, a forgiving open structure, and coeducational schools based on gender neutrality. The concept of what was a public school included all six of those principles and each was essential to the idea for various reasons.
25 CLAUDIA GOLDIN &LAWRENCE F.KATZ,THE RACE BETWEEN EDUCATION AND TECHNOLOGY (Harvard
The movement to change the institution of education began as a movement to expand public funding into schools not operated under public administration or elected school boards. It began with an attempt to use public funds to support private and even religious schools to help them meet specific needs required to continue to serve their students. That movement to sustain those schools soon created a narrative of a “market” economy within education.26 That approach meant that schools should compete like businesses and the best would survive while the worst would fail. Using that philosophy, the concept of voucher funding was developed using public school funds and providing parents with a level of personal funding to carry to any school – public or private – to enroll their student in a school the parent thought best suited their needs. Legal challenges made those vouchers more problematic and in most
settings they were not used widely and privileged those who already were using private schools for their children.
Charter schools alter the characteristics of public schools as identified by Goldin and Katz in several ways. They maintain public funding through shifting funds away from traditional public schools into charter schools but it is still public money. The question of whether it is publicly provided is debated but it is clear that private
companies and organizations without elected boards or officials are operating schools – sometimes at a profit.27 Church and state separation may or may not be maintained and
26 JOHN E.CHUBB &TERRY M.MOE,POLITICS MARKETS AND AMERICA'S SCHOOLS (The Brookings Institute
1990).
27 SARAH M.STITZLEIN, For-Profit Charter Schools and Threats to the Publicness of Public Schools, 44
the question of whether it must be relies on the same constitutional principles that are the subject of this paper. Although some charter schools are locally owned and operated there are many companies who own several schools across the country and thus are not decentralized or locally controlled. The story of New Orleans schools following Katrina documents perhaps the most egregious example of this disruption of local voice in schools.28 The forgiving open structure is also subject to some doubt and just how open charter schools are varies from place to place. Gender neutrality is most often intact but is not a given in charter schools.
Those virtues, as labelled by Goldin and Katz, relate to the student experience and local community control. What is omitted from the analysis is the teacher and the employment relationship to the school. In a traditional public school that relationship is well-defined and the requirements to qualify as a teacher are set to ensure that teachers who enter a classroom have received a base level of education in the art of teaching and in their subject matter. The various states have somewhat different laws controlling that relationship but central to all is the fact that the jobs are public employment – that is, the teachers are public employees. The significance of that fact is that teachers
maintain a list of constitutional rights that no state or school district can violate. Private employers are not held to such a standard in dealing with their employees. If charter schools are not public employers there is a fundamental shift in the relationship leaving teachers without the rights they enjoy as public employees.
28 KRISTEN L.BURAS,CHARTER SCHOOLS,RACE, AND URBAN SPACE:WHERE MARKET MEETS GRASSROOTS
The analysis in this study is appropriately labeled formalist because it examines the legal aspect of the nature of charter schools but that is not where the analysis ends. Formalism implies a study that ignores function – what is actually occurring in these spaces – and this study does not ignore that perspective on charter schools. The Court, looking at the state action doctrine, examines the relationship between the actors and the state through a lens of what occurred in the specific factual situation giving rise to a claim. The study is a detailed look at the peculiar facts of the dispute and that is truly a functionalist perspective on the charter school as a state or private actor. For that reason, this study straddles formalist and functionalist perspectives on the nature of charter schools.29
Another dichotomy in the policy discussions over charter schools is identified as an “instrumentalist” versus an “institutionalist” approach.30 That analysis, however, is focused on a broader operational view of the purpose of schools as public education or public schools. The distinction between the two is centered on the concept on the one hand that public schools are operated, owned and governed by public bodies
(institutionalist) while public education is a service that can be provided by private entities as well as public ones (instrumentalist). This study does not engage in that policy debate directly but seeks to identify one aspect of public control of schooling via legal status of those entities operating schools not in direct public control and
29 For a greater discussion of the “formalist/functionalist” distinction see, GARY MIRON &CHRISTOPHER
NELSON,WHAT'S PUBLIC ABOUT CHARTER SCHOOLS?:LESSONS LEARNED ABOUT CHOICE AND ACCOUNTABILITY 14-16 (Corwin Press 2002).
30 CHRISTOPHER LUBIENSKI, Instrumentalist Perspectives on the `Public' in Public Education: Incentives and
governance. The distinction between the institutionalist ideal of government owned and operated schools and the instrumentalist ideal that function, however limited in definition, prevails over form is, in part, driven by the rules under which each must operate. The rights and liberties protected by the Constitution certainly apply to public schools owned and operated by government entities. This study seeks to understand if those rights are protected for those employed by non-governmental entities that operate schools in the public name in the form of charters.
The rights enumerated in the Bill of Rights as included for the states in the Fourteenth Amendment include free speech, the right to due process before the taking of property, and equal protection of the laws. Simply the removal of due process from that equation means that teachers are all employees at will and can be fired without reason or cause. That places the corporate or private operators of a charter school in a position to absolutely control what happens in the classroom or who is teaching the students. A teacher’s political record of voting in primaries of a certain party could be used as grounds for removal from the classroom. A lesson on evolution could also serve as a reason for termination. Without the controls of constitutional support for basic rights the basic relationship between teacher, school, and community is altered in serious ways.
The purpose of this study is to examine the decisions of the Supreme Court of the United States to determine whether charter schools are – for the purposes of
constitutional rights – public schools. Although the statutes creating charter schools in the various states declare them to be public, the Supreme Court has never allowed a mere legislative label to control the nature of an institution. The Court has produced a
long line of cases discussing what factors must be considered to determine who or what organizations are subject to the limitations of the Constitution preventing infringement of those rights. By deciding who is subject to those limitations the court has decided who is a state actor and who is not. The State Action Doctrine will define whether charter school teachers are public employees or merely private employees lacking in constitutional protection. To understand the nature of charter schools’ publicness then requires an understanding of state action analysis in the Supreme Court.
The development of the State Action Doctrine began with the early courts defining to whom the Constitution applied. The initial states were not interested in a strong central government and the Constitution was drafted to identify those specific areas of control by the central, or federal, authority and those that remained in the control of the states. Rather than create two lists of areas, the Constitution simply identified the limited areas in which federal control was supreme. Those included national defense, immigration, trade among and between the states and other powers necessary to maintain a single country from the many states.
The addition of the Bill of Rights to the Constitution introduced a series of statements of individual rights, some of which were deemed to be natural, or
pre-existing rights while others were specifically directed at Congressional power by stating that “Congress shall make no law. . . .”31 The Tenth Amendment provided the clear statement that those powers not set out in the Constitution as federal powers were
specifically reserved for the states and the people.32 Initial decisions of the Court deferred to the states and limited the application of the Bill of Rights solely to the federal government and its activities. States and individuals remained unfettered in their actions based on the assumption that the people were the state.
Later, following the Civil War, the question of how racial discrimination would be addressed arose leading to the first Civil Rights Act and the passage of the
Fourteenth Amendment extending the protection of the Bill of Rights to the states. No longer could a state deny individuals rights guaranteed in the Constitution but
individual behavior remained a matter unencumbered by the Constitutional mandates. Problems arose as state officials found ways to distance themselves from action by allowing others to carry out discrimination and violations of the rights guaranteed by the Constitution. The Court responded by exposing the arrangements and building the concept that state action could include the acts of private individuals and organizations when their acts were “fairly attributable to the state.”33
Thus, State Action became more broadly defined to include a broader array of those barred from infringing on constitutional rights. It is this body of law that will determine whether charter schools are public or private as employers for the purposes of the Constitution. This study will examine that body of law for indications of how it will be decided when cases arrive before the Court as they surely will. The paper will
32 U.S. CONST. amend. X.
conclude with some of the possible implications of the Court’s decisions on this topic and what it might mean for education as a public institution.
There have been some studies of the question of charter schools and their standing as state actors. Most are in the form of comments or notes in law reviews and address specific cases without a broad overview.34 Some have looked at the issue quite broadly and painted it all as a single issue concluding that charters are state actors35 or are not state actors36 without differentiation of the circumstances that exist between student rights and employee rights or any rights to be examined. One study has decided based on Circuit Court of Appeals decisions that charter school employees will not be constitutionally protected while students and parents will be.37 One study looks at the issue on behalf of students of color and concludes that they are not protected by the Constitution in charter schools.38 At least one study asks the question but offers no answers.39 A few studies advocate for a change in the state action doctrine or argue that
34 KEVIN S.HUFFMAN, Note: Charter Schools, Equal Protection Litigation, and the New School Reform
Movement, 73 NEW YORK UNIVERSITY LAW REVIEW 1290(1998);BRADLEY T.FRENCH, Charter Schools: Are
For-Profit Companies Contracting for State Actor Status?, 83 UNIVERSITY OF DETROIT MERCY LAW REVIEW
251(2006).
35 HUFFMAN, NEW YORK UNIVERSITY LAW REVIEW, (1998);ROBERT J.MARTIN, Charting the Court Challenges
to Charter Schools, 109 PENN ST.L.REV. 43(2004).
36 FRENCH, UNIVERSITY OF DETROIT MERCY LAW REVIEW, (2006).
37 MAREN HULDEN, Charting a Course to State Action: Charter Schools and § 1983, 111 COLUMBIA LAW
REVIEW 1244(2011).
38 PRESTON C.GREEN,III, et al., Charter Schools, Students of Color and the State Action Doctrine: Are the
Rights of Students of Color Sufficiently Protected?, 18 WASHINGTON &LEE JOURNAL OF CIVIL RIGHTS AND
SOCIAL JUSTICE 253(2012).
39 KARLA A.TUREKIAN, Traversing the Minefields of Education Reform: The Legality of Charter Schools, 29
the state action doctrine fails to provide an appropriate rule regarding charter schools and others.40 No thorough examination of the question of the state actor status of charter schools relating to teachers as employees was found. For that reason, this study is proposed to address the need to understand how teachers in charter schools are likely to be treated under the state action doctrine in the Supreme Court of the United States.
Research questions
The questions this study seeks to answer are:
Are charter schools state actors for Fourteenth Amendment purposes? Are charter schools public employers as are traditional public schools? Do teachers working for charter schools enjoy the same constitutional employment rights as public school teachers?
By examining the judicial decisions that have shaped the State Action Doctrine this study hopes to arrive at an expectation of how the Supreme Court will classify charter schools in their relationships to teachers and other employees.
Each of these questions requires as a starting point a thorough understanding of the history and development of the state action doctrine in the Supreme Court of the United States. Writers and even the Court itself have identified several tests. The Court has used terms similar in nature to describe the different analyses in different cases but
40 CATHERINE LOTEMPIO, It’s Time To Try Something New: Why Old Precedent Does Not Suit Charter
Schools in the Search for State Actor Status, 47 WAKE FOREST LAW REVIEW 435(2012);BROOKES BROWN, A
Conceptual Disaster Zone Indeed: The Incoherence of the State and the Need for State Action Doctrine(s), 75 MARYLAND LAW REVIEW 328(2015);MARK TUSHNET, State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations, 3 CHICAGO JOURNAL OF INTERNATIONAL LAW
the law is, by several writers’ evaluation, a bit less than crystal clear in this area. One approach to this analysis is to extract the points of difference that are essential to understanding the Court’s position and to categorize them in a way that is useful for the questions this study will address.
Once those categories are developed it will be necessary to examine the facts and circumstances surrounding each sort of analysis including the relationship of the private/public interests involved, the behavior involved, and the rights being
transgressed. The Court has made a point of limiting certain holdings to very specific fact situations and to understand how a similar fact situation might be handled those details must be identified. I propose two different approaches to the development of the categories to attempt a sort of triangulation of the analyses to compare their results.
My hypothesis going into this study
My expectation in this study is that the Court’s earlier decisions will likely lead to the determination that charter schools, as employers, will not be held to be public, or state actors. Of course, the Court is capable of shifts and changes in how it handles any fact situation by distinguishing it from earlier decisions and given the uncertain nature of the state action doctrine there is little way to predict with certainty the course the Court will take on this issue.
Delimitations of the study
It is not the purpose of this study to evaluate the performance or appropriateness of charter schools. Previous writers have provided policy
recommendations either praising or condemning charters.41 Others have studied the results of charters for student achievement42, community growth and recovery43, and many other issues and perspectives surrounding their existence and operation. All of those questions are worthy of continuing study and discussion to inform policy moving forward. What has been less examined is what the precise legal nature of a charter school as a public institution is within the U.S. Constitution. It is limited to a single legal determination of the nature of the charter school as a state actor but that finding will be based on the actual operation and actions of the charter schools in question.
This study is also limited to questions of the relationship between charter schools and their teachers as employees. The law relating to student rights is also quite important and perhaps even more unsettled than that of teachers but it does involve another set of analyses not included in this study. The study is also limited to Supreme Court cases with exceptions for Circuit Court cases that have been decided after the last relevant Supreme Court case. Those Circuit Court cases are used only to see what the jurists on those panels expect the Supreme Court would do but they have no
precedential value for any future Supreme Court case. They are included solely to see what others have written on the topic. The Supreme Court cases are the law and where there are gaps in that law, as there are in this study, those must be filled by the
41 CHUBB &MOE. 1990;MIRON &NELSON. 2002;DIANE RAVITCH, REIGN OF ERROR:THE HOAX OF THE
PRIVATIZATION MOVEMENT AND THE DANGER TO AMERICA’S PUBLIC SCHOOLS (Vintage Books 2014);SARAH M.
STITZLEIN, For-Profit Charter Schools and Threats to the Publicness of Public Schools, 44 PHILOSOPHICAL
STUDIES IN EDUCATION 88(2013).
42 THE CHARTER SCHOOL EXPERIMENT:EXPECTATIONS,EVIDENCE, AND IMPLICATIONS (Christopher A. Lubienski
& Peter C. Weitzel eds., Harvard Education Press 2010).
reasoning and analysis of the Supreme Court. No state law is analyzed in this study as that would involve a substantial increase in the breadth of the study and an excellent study of the state laws of charter schools exists.44
As Justice Brennan noted, “Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government. It is
therefore understandable that the constitutional prohibitions encounter their severest test when they are sought to be applied in the school classroom.”45 As will be seen throughout this study that test in state action and the Fourteenth Amendment has revealed just how difficult and knotty an area of the law can become even for the finest judicial minds in the country.
44 GREEN &MEAD. 2004.
Chapter 2
Review of the literature
The primary sources for this study are the text of the Fourteenth Amendment to the Constitution46 and the opinions of the Supreme Court supplemented by the most recent Circuit Court of Appeals opinions that have shaped and established the state action doctrine applicable to that. The requirement for action “under color of state law” in the Civil Rights Act47 run parallel and are essentially identical48 so the cases
discussing one are instructive for the other. It is those opinions that constitute the data for analysis to answer the questions this study posits. There are also secondary sources that can assist in the analysis of the opinions of the Court but they are assistive and not dispositive of the questions. Those will be discussed in a separate section of this
chapter. For purposes of clarity the opinions of the Court will be addressed in chronological order for this review to better see the development over time of the doctrine.
The later analysis49 will approach the question from two distinct perspectives. First, the traditional analysis of facts and details in the various categories of tests
identified by the Court will be the traditional approach to state action case analysis. The second perspective will be driven by the theoretical base taken from Professor Black’s
46 U.S. CONST. amend. XIV § 1. 47 42 U.S.C. § 1983 (2016).
48 United States v. Price, 383 U.S. 787 (1966). 49 See chapter 4, infra.
work50 and expanded upon by Peller and Tushnet51 that develops the argument that the doctrine involves the balancing and distribution of certain individual rights rather than a factual, case-by-case analysis in the traditional analysis.
Primary sources
This study of the publicness of charter schools in the United States of America uses as its baseline means for analysis Supreme Court of the United States decisions that have shaped the state action doctrine as it applies to the Fourteenth Amendment of the U.S. Constitution.52 That doctrine has grown from the post-Civil War era and
continues to develop into the new era of privatization of traditionally governmental functions. Made necessary by the passage of the Fourteenth Amendment in 1868 applying Equal Protection and Due Process to the states, the State Action Doctrine began to expand the reach of the prohibition on infringing the constitutional rights of individuals beyond strictly governmental action to avoid results that allowed private individuals to take on governmental functions to circumvent the bar of governmental discrimination. The Supreme Court of the United States has a long history of defining state actors in many settings although it has not yet ruled in a true charter school case. The Fourteenth Amendment and those decisions are the basis for this section of the literature review.
50 CHARLES L. BLACK,JR.,ANEW BIRTH OF FREEDOM:HUMAN RIGHTS,NAMED &UNNAMED (Yale University
Press 1997).
51 GARY PELLER &MARK TUSHNET, State Action and a New Birth of Freedom, 92 GEORGETOWN LAW JOURNAL
779(2004).
The Fourteenth Amendment
To understand the State Action Doctrine one must first understand the
Fourteenth Amendment and how it changed the legal landscape in the late nineteenth century. The Constitution was developed to unify the various states and to assign very specific and limited powers to the unified whole. To “establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty”53 was not just a list of possibilities but was a limitation upon the central government as interpreted by the Supreme Court. Chief Justice Waite described it as a government of the people with greater power than that of the states but much more limited in scope.54 It is the limitations that truly form the basis for the state action doctrine.
Because the Constitution lacked a statement of the basic rights to be expected in this new country the first ten amendments were adopted stating the now well-known rights of free speech, free assembly, freedom of religion and the principles of due process and equal protection, among others, in what has become known as the Bill of Rights.55 As a limit on the power of the federal government, however, the Constitution prohibited that government from abridging those individual rights and left up to the States and the people whether to enforce and protect those rights on a state-by-state
53 U.S. CONST. pmbl.
54 United States v. Cruikshank, 92 U.S. 542 (1876). 55 U.S. CONST. amend. I-X.
basis. Early cases refused to apply the obligation to protect those rights as a limit on the action of individuals or the states.56
The end of the Civil War saw the creation of much legislation designed to reform what was perceived as the errors of the Confederacy and to displace race as a means of discriminating against individuals. These acts were supported by the passage of the Fourteenth Amendment applying the Bill of Rights to the States. The text of the Fourteenth Amendment includes the following:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.57
For the first time the states were included in the prohibition of abridgement of rights and the requirements of due process and equal protection of the laws. Two major areas of inquiry arose with that expansion of the reach of the Constitution beyond the federal government. The first, based upon the limitation of the States, is the question arose “Who is the state?” and what actors can be considered acting on behalf of the state. The second is the question of what rights are protected by the amendment. Three areas are listed – privileges and immunities, due process, an equal protection – yet there is no clarity what is included in those enumerated rights. These issues were left to the Court to develop a definition of state action when it deprives someone of the constitutional rights and just what rights are included. The cases that follow trace the development of those definitions to the present day chronologically within each category to
56 United States v. Cruikshank, 92 U.S. 542 (1876). 57 U.S. CONST. amend. XIV.
demonstrate the path the Court has taken to create the modern state action doctrine and what it preserves.
What rights are incorporated?
The cases involved in defining the rights protected by the Fourteenth
Amendment are many of the same early cases that defined the state action issue. The issues of what was incorporated is one that is largely settled and developed much faster than the definition of a state actor but it is important to understand what rights are protected from state action to see the significance of this doctrine to the issue of whether charter schools are truly public – or in this analysis, state actors – and thus what rights charter schools are held or not held to protect. The language of the
amendment is not entirely clear but the cases have since made this issue well defined. Early in the history of the Fourteenth Amendment litigation of what rights are incorporated the Court made a rather sweeping decision in what is known as the
Slaughter House Cases.58 That decision virtually eliminated the use of the privileges and immunities clause to limit state action. The limited reach of the entire Fourteenth Amendment was a result of the Court’s dictum that those amendments were only adopted to protect former slaves. Because the case before the Court did not relate to racial discrimination the amendment’s protections were of no avail under the facts. That holding rendered the privileges or immunities clause useless for more than a century.
The 1897 case of Chicago, Burlington & Quincy Railroad v. Chicago59 saw the issue of taking of property without due process raised against a state actor by way of the Fourteenth Amendment. The Court did not hold the amendment to be inapplicable but went beyond that point to find that the taking was not without due process. For the Court to issue an opinion it first had to reach a jurisdictional finding and that
jurisdiction could only be based upon a constitutional claim under the Fourteenth Amendment. Thus, by ruling in the case on the substantive issue the Court applied the due process taking clause to the state by virtue of the Fourteenth Amendment. The case of Twining v. New Jersey60 supported the applicability of the due process clause in dictum acknowledging that the first eight amendments might apply to the states as a violation could deny them due process under the Fourteenth Amendment.61
Most of the decisions incorporating rights into the purview of the Fourteenth Amendment due process clause arose during the Warren Court. During that time, the Court incorporated into the due process provision of that amendment the Fourth Amendment exclusionary rule, excluding the use of evidence obtained illegally in a criminal prosecution,62 the Fifth Amendment double jeopardy bar,63
59 Chicago, Burlington and Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897). 60 Twining v. New Jersey, 211 U.S. 78 (1908).
61 Id. at 98-99.
62 Mapp v. Ohio, 367 U.S. 643 (1961). 63 Benton v. Maryland, 395 U.S. 784 (1969).
incrimination,64 and the Sixth Amendment speedy trial requirement,65 chance to confront witnesses,66 and assistance of counsel67 rights.
State Action Cases
The application of the Enforcement Act in a criminal indictment served as an early test of the new Amendment. State officials and individuals were indicted with a charge that they joined to deprive two African American gentlemen of rights “granted and secured”68 by the Constitution or laws of the United States. The initial question before the court was whether the rights alleged to have been violated were so granted and secured by the Constitution. Relying on earlier decisions69, the Court held that the rights to freely and peacefully assemble, bear arms, due process and equal protection were merely pre-existing rights stated in the Constitution without adding anything to those rights. Furthermore, the Court added that as to seeking redress from individuals, even the Fourteenth Amendment did not bar the violation of those rights as it was limited to prohibiting a state from infringing upon them. Thus began the delineation between who is and is not acting on behalf of a state.
That strict limitation was slightly expanded when the Court was presented with a claim involving the removal of a state court case to federal court claiming that the
64 Malloy v. Hogan, 378 U.S. 1 (1964).
65 Klopfer v. North Carolina, 386 U.S. 213 (1967). 66 Pointer v. Texas, 380 U.S. 400 (1965).
67 Gideon v. Wainwright, 372 U.S. 335 (1963). 68 United States v. Cruikshank, 92 U.S. at 548.
African American defendant could not receive a fair trial in a state court with a jury of all white people70. The men in question had been indicted by a jury of all white men and the same profile described the venire for the petit jury. However, the statute providing for removal required that a pleading be filed asserting a certain denial of rights before trial commenced based on a state law or ruling violating the rights of the defendants. Had Virginia barred African Americans from jury panels by law such a pleading would have been possible but no such law was in existence. The Court held that it could not intervene in a situation of a lower court official engaging in discriminatory behaviors that could still, presumably, be rectified on appeal in the state courts at the end of the trial. The distinction was that the fact of an all-white jury was not evidence of a
discriminatory law of the state and therefore failed to fall within the reach of the federal courts.
Racially mixed juries were the subject of two appeals on different questions. In one, the Court declared invalid a state statute restricting jury service to white persons as amounting to a denial of the equal protection of the laws to a non-white defendant.71 In the same volume of the reports, the Court held that a similar discrimination imposed by the action of a state judge denied equal protection even though the language of the state statute relating to jury service contained no such restrictions.72
70 Virginia v. Rives, 100 U.S. 313 (1880).
71 Strauder v. West Virginia, 100 U.S. 303 (1880). 72 Virginia v. Rives, 100 U.S. 313 (1880)
The next step in the development of the doctrine was a series of cases that recognized that the Fourteenth Amendment reached all state agencies but found nothing but individual action in the set of cases. In 1883, the Court struck down certain provisions of the Civil Rights Act of 1875 holding that it impermissibly addressed
individual action and that was not authorized by the Constitution or any amendments73. The provisions set criminal penalties for any individual who violated certain rights of another. The Court reviewed the legislative history of the Fourteenth Amendment, the basis for the support for the statute. Finding the provision unconstitutional the Court held that the amendment plainly prohibits action by states and by state law but does not authorize Congress to act directly to control individual behavior.
An 1897 case pitted the Chicago, Burlington and Quincy Railroad against the City of Chicago in an eminent domain claim that the city obtained a jury verdict of $1 setting the value of the railroad’s property at a street crossing.74 The railroad claimed that was a taking without due process despite having participated at trial. The Supreme Court first made clear that anyone with a public position acts on behalf of the state. No limitation is placed on whether the actor is an employee of the State of Illinois or the City of Chicago. The Supreme Court made clear that a government actor at any level is “the state” in the meaning of the Fourteenth Amendment. The railroad lost the appeal based on a holding that the $1 compensation was appropriate under the circumstances.
73 Civil Rights Cases, 109 U.S. 3 (1883).
The Court turned to the state court enforcement of the private agreements to find state action and noted the earlier cases that held that any manner of state involvement could be state action invoking the Fourteenth Amendment protections. Even a state’s Supreme Court has been held to be subject to the limitations of the Amendment as state action. The Court went on to hold in these cases that judicial enforcement of a private agreement that violates constitutional rights protected by the Fourteenth Amendment is state action sufficient to overturn the state court action. Thus, the first test of state action beyond actual state laws and state agents is that judicial enforcement of a private action constitutes state action. As an absolute that principal will not hold for all factual situations.
A unique situation gave rise to a new category of state action in the case of Marsh v. Alabama75 involving a town wholly owned by the Gulf Shipbuilding Corporation. The town appeared like any other town with streets, homes, stores, police services, and a Post Office all on a main highway and entirely open to the public. Stores contained a sign notifying visitors that they were on private property and that no soliciting was allowed. When a woman, after being denied a permit to do so, attempted to distribute religious literature in what seemed to be public areas she was told to leave the area and refused to do so. She was charged and convicted of refusing to leave private property after being warned to leave and asserted as a defense her First and Fourteenth Amendment rights. The state courts held that the public use of the property did not
convert it to public property and found the statute criminalizing the woman’s behavior valid and enforceable.
The Court began by making clear that had this been a municipal street in public ownership there could be no doubt that her defense would stand as an absolute
defense. The sole question presented for review was whether private company ownership of the entire town was sufficient to allow that company the power to
infringe the free speech rights of the woman arrested. Setting aside the issue of whether the streets had been dedicated to public use by the actions of the corporate owners the Court held that property held open to the public carried with it some of the
responsibilities to protect the individual freedoms of those who use the premises. This “public function”76 as described by the Court made applicable the constitutional
guarantees of individual freedom by means of the Fourteenth Amendment. That label will become an argument to extend this holding further in later cases with mixed success. It is interesting to note that the term “state action” is not even used in the opinion of the Court despite the necessity of finding that the duties of the state applied to the corporate owners of the town.
The issue of restrictive covenants entered into by private landowners that limited the occupation of adjacent lands based on racial identity often leads to a state action decision. One was limited to Caucasians and the other excluded “people of the Negro or Mongolian Race.”77 The agreements were entirely private contracts until
76 Id. at 507.
African American individuals purchased some of the property and occupied the premises. At that point, other landowners who were party to the covenant sought judicial enforcement of the covenant by injunction. The Court first made clear that had the state or city involved legislated the restrictions they would clearly be barred from doing so by the Fourteenth Amendment. Because these were the acts of private individuals they presented a new set of facts to the Court. The Court noted that the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful.”78 The Shelley holding was reinforced in a later case in which an attempt was made by a neighbor to enforce a restrictive covenant by seeking damages for the breach of the covenant. The Court held that the judicial enforcement by awarding damages would be state action making the attempt to enforce the covenant unconstitutional.79
Public schools were the focus of a Fourteenth Amendment analysis in Brown v. Board of Education,80 perhaps the most famous of school cases. The Court held in that case that the local school board of Topeka, Kansas could not operate schools separately for different races. Many issues were raised in that case and the meaning of equal protection under the Fourteenth Amendment had been clouded for over 60 years by a jurisprudence of “separate but equal” facilities typified by Plessy v. Ferguson.81 In Brown, the Court made clear that the Fourteenth Amendment applied to public education and
78 Id. at 13.
79 Barrows v. Jackson, 346 U.S. 249 (1953).
80 Brown v. Board of Education, 347 U.S. 483 (1954). 81 Plessy v. Ferguson, 163 U.S. 537 (1896).
required actual equality rather than pro forma equality. Education was held to be “a right which must be made available to all on equal terms.”82 State action was involved in state sanctioned separation of children by race in local school districts and that separation was not beyond the reach of the Constitution.
The mid-twentieth century ushered in a new era of civil rights activism and litigation that began to develop a wider definition of state action. Previously the Court had focused on the involvement of state officials and meticulously avoided including the acts of others in the analysis. The cases from this period push that boundary into more complex interactions between private individuals and state officials. The several current categories of state action begin with these cases and their analysis forms the main argument for or against a finding of state action in the Court. What is clear from this line of cases is that there is no single test or circumstance by which a private entity or individual can be held to be a state actor.
A Delaware statute authorized the creation of a public authority by the City of Wilmington, Delaware that resulted in the construction of a public parking lot of the sort found in most urban settings.83 As a source of revenue to pay for the structure in addition to parking fees a portion of the building was dedicated to retail businesses, including a coffee shop. The coffee shop was a part of the parking lot but was accessible by an entrance on the public sidewalk adjacent to the structure. The building was labeled as public by signs and flags but the retail operations were tenants and owned
82 Brown v. Board of Education, 347 U.S. at 493.
privately. The Authority had borne the costs of the initial construction of the coffee shop under its agreement with the tenant and the tenant finished with its own fixtures and front at its own cost, benefiting from the tax exemption of the Authority to the extent of its improvements. The Authority also paid for the heating of the shop and to provide regular maintenance to the structure. Other than a general requirement that the premises be used for serving food and drink and an agreement to follow all laws, there were no other restrictions on the use of the premises in the lease agreement, including no requirement that the tenant serve all members of the public.
In 1958, an African American gentleman parked in the structure, walked out to the sidewalk and entered the coffee shop. The owner refused him service based on his race so declaratory relief was sought in the state courts of Delaware. The trial court found the action in violation of the Fourteenth Amendment but the Delaware Supreme Court held that the shop owner was acting purely in his own private capacity and could not be held to the standard for state action. The Supreme Court accepted the case and reversed with a finding that the State had “so far insinuated itself into a position of interdependence with [the coffee shop] that it must be recognized as a joint participant in the challenged activity”84 and thus applied the Fourteenth Amendment standard of equal protection. The public ownership of the building, the public nature of its purpose, and the fact that profits from the shop benefitted the public by supplementing the parking income all led to the conclusion that there was a sort of symbiotic relationship
between the shop and the Authority. That entwinement led to the finding of state action by a purely private store owner.
The Court explicitly rejected any call to develop a “precise formula for recognition of state responsibility”85 under the Fourteenth Amendment. A detailed analysis of the facts and circumstances is required to reveal “the nonobvious
involvement of the State in private conduct”86 to attribute that conduct to state action. It requires a detailed statement of the factual bases of each case to identify those factors that influenced the Court to find or deny state action. Unfortunately for later litigants the Court specified that the required state action could only be tied to this unique set of facts – language used later to limit its reach to those cases in which “the state leases public property in the manner and for the purpose shown”87 in that case.
Taking another approach in a 1963 decision the Court was presented with a case of a sit-in demonstration at a lunch counter in Greenville, South Carolina.88 Ten young African Americans entered a store and sat at the lunch counter reserved for whites only. The store manager closed the store and the participants in the sit-in were arrested for trespass and later found guilty of that charge. The store manager closed the counter and the store to avoid violating a Greenville ordinance prohibiting mixed race lunch
counters and requiring racially segregated facilities in the form of tables, counters, dishes and preparation areas for food. The Court held that although the private act of
85 Id. at 722. 86 Id.
87 Burton v. Wilmington Parking Authority, 365 U.S. at 726. 88 Peterson v. City of Greenville, 373 U.S. 244 (1963).
closing the counter could not be reached by the Fourteenth Amendment, the involvement of the City of Greenville by making the serving of the young people a
violation was sufficient to invoke state action and call for the reversal of the convictions. Protestors outside of a privately-owned amusement park in Maryland objected to the park’s policy of not allowing African Americans to enter or enjoy the rides in the park even though the rest of the public could enter and ride. A security guard, with the credentials as a deputy sheriff, asked the protestors to leave when they lined up to ride one of the rides after acquiring tickets for that ride. When the protestors did not leave, the deputy sheriff arrested them for trespass and the charges were brought to court. After the Maryland Court of Appeals refused to reverse the charges based on a finding that this was a purely private act on behalf of the private owners of the amusement park the case came before the Supreme Court. In a split decision, the Court held that the acts of a duly authorized deputy sheriff, even if enforcing a private policy, constituted state action and thus violated the Fourteenth Amendment equal protection mandate.89
Another case of entwinement involved the ownership of a park area that came under scrutiny.90 In 1911 a decedent devised a tract of land to the City of Macon, Georgia, as a park for white people only. It was governed by a board of managers, all of whom were white. The City operated the park initially as a segregated one but
eventually decided that it could not do so constitutionally and it integrated the park facility. The Board of Managers sought a court order to remove the City as trustee and
89 Griffin v. Maryland, 378 U.S. 130 (1964). 90 Evans v. Newton, 382 U.S. 296 (1966).
